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ONE shouldn’t be too harsh on the accountability court’s Justice Muhammad Bashir for writing an inadequate judgement. In earlier analyses in this and other publications, I have pointed out that the Supreme Court too has authored judgements based on misreading of record (eg minority judgement in the Panama case), violation of centuries of jurisprudence on mens rea (read the majority judgement in the Panama case), executive amnesty overriding constitutional stipulations (Imran Khan’s case), inconsistent rulings in similar cases (as noted by Justice Faiz Isa as well) and violation of the rule regarding conflict of interest.

This only suggests that our judges are human and prone to error, not bad faith.

The good thing, however, is that Justice Bashir’s judgement can actually be corrected in appeal, unlike when the SC assumes suo motu jurisdiction — those errors cannot be easily corrected, no matter how glaring and painful. Which is why one recommends this jurisdiction to be exercised sparingly.

While it is for the appellate court to assess the errors in the accountability court ruling (which are too numerous to be listed), what may be noted here is one glaring omission in the prosecution of the case. As we know, every accused has the right to “fair trial and due process” under Article 10-A of the Constitution. This means that the burden is on the prosecution to prove its case beyond reasonable doubt.

How watertight was the prosecution’s case in the Avenfield trial?

Exceptionally, where the charge is that the accused or any other person on his behalf holds property “disproportionate to known source of income”, which is the allegation against former prime minister Nawaz Sharif, the burden is shifted to the accused to satisfy the court that the property was not acquired through corrupt means. However, there is plenty of case law, including by the SC, that for the burden to shift to the accused, the prosecution has first to prove the value of the property in question, the known sources of income of the accused, and a clear disconnect between the two.

The prosecution alleges that the Avenfield apartments were acquired between 1993 and 1996. The accused have their own version on how these were acquired, but even if we are to dismiss that entirely, the prosecution was still required to prove the value of these apartments at the time it alleges they were acquired in the 1990s.

Remarkably, the judgement shows no attempt by the prosecution to establish that value — even though, without establishing such value, and without demonstrating a discrepancy between that and sources of income of the accused, it is simply not possible to shift the burden on to the accused, or to prove the case against him. This is so elementary that it is perplexing that the prosecution made no effort in this regard. How could they commit such a basic error?

In his article ‘Penthouse Pirates’ in The Mail on Sunday, David Rose provides a clue. This is meant to be extremely damaging to the Sharif family, and was paraded so by many publications. This is what Rose says: “Avenfield is where Pakistan’s super-rich former prime minister, Nawaz Sharif, has lived when in London since 1993, knocking four luxury flats together to make a single mansion, now worth at least £7 million.” But if these flats are worth £7m today, after renovations, what would their value have been in 1993, when they were allegedly acquired?

It can be verified that prices in central London have increased nearly seven-fold since 1993-96. This means that the value of the flats was likely hardly £1m at the time they were allegedly acquired. At the then ex­­change rate, this comes to Rs4.5 crore. Was that so beyond the means of an industrial family like the Sharifs?

This then explains why the prosecution never attempted to establish the value of these flats. Doing so would destroy the carefully crafted narrative, so popular in certain quarters, that the Sharifs have amassed wealth amounting to $3 billion in UK and elsewhere. It would also have defeated the case at hand.

A word about that nonsensical narrative as well.

It is noteworthy that the only properties disclosed in the Panama Papers as belonging to the Sharifs are the four Avenfield flats. Had there been other properties, it is reasonable to assume that they too would be held through Mossack Fonseca, in which case these would have come out as well. The former prime minister’s family does of course hold other properties in London, and in Saudi Arabia, but it is they who revealed those properties. These are not part of the Panama leaks.

One therefore wonders whether the Avenfield flats truly represent the tip of the iceberg, as some would like to believe, or if it is in fact our discourse that needs to be brought within rational limits.

On DawnNews

Comments (30) Closed

Muneer

Jul 17, 2018 09:03am

The right to fair trial and due process is a fundamental right applicable to all . It is applicable to all parties of a case whether it is prosecution,defendant, or any other party etc etc. It does not mean Burden of Proof which means proving a fact in the court by means of providing evidence in criminal or civil proceedings or any other legal proceedings in a court of law.Secondly,it is beyond reasonable doubt that the Sharif family owns the Avenfield property as they have themselves confirmed its ownership and that there are residing there since 1993.They have not denied that fact as well.

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Ahmad Gul Kainth

Jul 17, 2018 09:12am

I don't know the legal meanings of this case but what I think is that Sharif should have proved himself not-guilty by sharing all the information regarding all thetime flats. If this industrial family had enough means to buy these flats in 1990s, what would stop Sharif from sharing it's true trust deeds?. Mantra is very simple and we don't need to make it complicated: Sharif was three times prime minister and it's his national duty to prove the means through which he has bought these flats.
Every blame is on Establishment and I wonder whether Establishment has forced Sharif family to present forged documents , Qatari letters. Why did he not force his sons to come back and come before court. Why did he not bring back Ishaq Dar ?

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Observer-India

Jul 17, 2018 09:22am

Who will listen the truth ?

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Kamran

Jul 17, 2018 09:28am

Clear, concise, and well-argued. Brilliantly-written, in short!

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khaled

Jul 17, 2018 09:30am

Well articulated.

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asmatullah

Jul 17, 2018 09:31am

sir, i dont know why we need to appraise the value property. the appraisal value is useful when there is no acutal market of the property. in the case of avenfield i believe the receipt or bill of purchase will give us a true value that was paid in reciprocation. secondly, whether it was possible or not is hard guess. let make simple them the respected MNS shb present a bill of purchase and the way and means of money that was used to purchase avenfield apartments.

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Jamal

Jul 17, 2018 10:02am

Well argued, Chima sahib, but if it were indeed such a trivial matter why did the defence not present evidence to support this argument?

Establishing the transaction value of the UK properties at the time of the original transaction does not require speculation. I am sure that you are aware that in England property transactions are not conducted in the farcical manner that they are in Pakistan. Records dating back decades can be obtained and accurate records and benchmarks are readily available.

I may not be in possession of my tax records from decades ago however there is enough in the public domain about the tax paid and wealth declared by the Sharifs in the 1990s. So, again, the defence should waste no time in destroying the prosecution's case.

There is also the small matter of how the money ended up in England. We all await Mr Dar to shed light on such delicate matters.

Lastly, pls remember a crore in 1992 was not the trivial amount it has become.

PS Why do you think the Sharifs would only use Mossack Fonseca?

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Sufi

Jul 17, 2018 10:14am

A page (number 10) from the Ehtisab Ordinance introduced by Nawaz Sharif in 1997.
'If you can't provide source its black corruption Money'.

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umer_1973

Jul 17, 2018 10:40am

Excellent write-up. Although, as a student of law,my understanding is that once NS accepted, as he did on the floor of the previous parliament, that he did own those properties, that then automatically relieved the prosecution of the burden of proof and it shifted to the former PM.

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Imran ali

Jul 17, 2018 11:14am

NS has some of the best paid lawyers defending him in this case. Why did they not use this line of defence?

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Mustafa

Jul 17, 2018 12:30pm

insghitful

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Bilal

Jul 17, 2018 01:26pm

The final word!

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S. Islam

Jul 17, 2018 01:41pm

One thing we all know that Mr Nawaz Sharif belongs to an industrial rcih family and for them buying a 1 million pound property in the UK was not above or beyond there means of income so it shows the case is definitely a way to sideline him from politics and to disgrace him as no corruption was proven before when SC announced its verdict and now again the accountability court judge again cleared him of corruption.

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Truth is truth

Jul 17, 2018 01:48pm

@Bilal : Let us see if wisdom prevails at Islamabad High court.

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Mithidada

Jul 17, 2018 02:07pm

Very well argued. These figures need to be given much more publicity.

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Ayesha

Jul 17, 2018 02:27pm

Always good to be reminded of the rudimentary and basic principles of law upon which our rule of law is founded on. Well done

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Omar

Jul 17, 2018 03:45pm

Logical and well written. Unfortunately, critical thinking has always been overshadowed by the powerful narrative set by the deep state!

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Hu Zhi Yuan Dr

Jul 17, 2018 03:54pm

Author in an Email Exchange had stated : "........ the former PM may have an uphill task answering some of the issues raised there." Indeed, it was an uphill task !!!!!

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Faisal

Jul 17, 2018 03:57pm

If it is so simple, Sharifs could have put this argument ahead in the court and also in the media. Not sure why didn't they do so. It would interesting to have opinions of other financial experts and lawyers regarding this.

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Hasan

Jul 17, 2018 05:43pm

Some compelling points made here, but I would add that I have serious doubts about this £7 million figure. In the outskirts of London, a three bedroom flat will easily go for £500k, and here we're talking about one of the most expensive locations in one of the most expensive cities on the planet. there is no way that in 2018, four luxury flats in Park Lane would have a combined value of only £7 million, when just around the corner in Mayfair they can cost as much as £20 million per flat.

Perhaps this was the estimated value in 1993?

Hasan

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Dr Arslan

Jul 17, 2018 06:50pm

Nawaz and Maryam's defence lawyers did not raise these points in their defense. Something must be missing here.

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watchman

Jul 17, 2018 06:52pm

finally some sane logic . wonder why it is missing from main discourse . why did the defence not bring ti up in their arguments

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Amin

Jul 17, 2018 08:12pm

The issue is very simple, unexplained wealth beyond means, flimsiest statements by the Mian family are self contradictory.

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Ash2000

Jul 17, 2018 10:22pm

At last some rational article with right argument. This is basic Law 101 but not sure how accountability court and SC in panama verdict missed it. Prosecution has to prove the case and not for the accused to prove their innocence. It will be hard for all our parents/grand parents for the houses they bought 20-40 years ago to prove source of funds as nobody keep old records and most of the transactions at that time happening in cash even though all legal money.

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Ash2000

Jul 17, 2018 10:27pm

@umer_1973 - No. sharif owns those flats but no illegality is proved. Anybody can buy any property anywhere in the world if that country’s law approve it.

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Dr Aamir Khan

Jul 18, 2018 01:03am

This guy Salman Chima writes with a clarity that sizzles, and with logic that overwhelms. I wish he would write more.
Dr Aamir Khan

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Petere

Jul 18, 2018 09:14am

Looks like very political judgement and not impartial one !

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moona

Jul 18, 2018 09:45am

Yes, but who is listening to logic?

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Shahid Latif

Jul 18, 2018 12:32pm

@Muneer . Wealth of the 'rich indutrialist' is all I'll gotten. It can be established through their tax returns. Poor fellow had such meagre income from his business that he and his father have been paying income taxes in hundreds and thousands of rupees annually. It is only recently they have started paying taxes in lacs under media pressure.
So Mr Salman he had no legitimate money to pay even a few crores for the flats. Also if they had no guilt on their conscience they would not have denied the ownership of flats until the Panam Papers proved that beyond doubt.

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Dr Hu Zhi Yuan

Jul 18, 2018 06:49pm

@Faisal Author, being a corporate loawyer estimates the value 4.5 crores in those days ( 90's). Ahmed Noorani ( of News ) today writes it was worth about 10 crores. Good luck with your "EXPERTS"......